Lawyers prepare for biggest shake-up to divorce law in 50 years

Lawyers in England and Wales are preparing for a rise in divorce cases this spring as estranged couples turn to new legislation allowing them to end their marriage without having to blame each other.

The Divorce, Dissolution and Separation bill will come into effect in April and has been hailed as the biggest shake-up in divorce law for 50 years.

Couples will be able to cite the irretrievable breakdown of a marriage as the sole ground for divorce, avoiding the need for one party to attribute fault to the other.

The government had originally intended the legislation to be up and running by autumn 2021, but updates to court IT systems and legal procedure rules led to delays.

The bill, originally passed in June 2020, will allow tens of thousands of couples to separate cleanly without the need to put responsibility for the breakdown on one party, or to stay trapped for years in unhappy marriages.

Parting couples must under current law either live apart for a substantial period of time or show one party is “at fault” because of adultery, desertion, or “unreasonable behaviour” in order to part legally.

If one party does not give consent, the couple must live separately for five years before a divorce can proceed.

Nigel Shepherd, a consultant at law firm Mills & Reeve and former president of Resolution, the family lawyers association, said many couples were waiting to lodge petitions.

“At the moment if people want to do things amicably lawyers have to say, ‘one of you will have to blame the other’, which makes people aghast,” he said.

Simon Blain, partner at law firm Forster, agreed, saying: “Some people are definitely preferring to wait. They don’t want to start off by making allegations against their other half.”

The “blame game” has been embedded in the divorce system in England and Wales since the 1973 Matrimonial Causes Act.

Charmaine Hast, head of the family department at Wedlake Bell, said the change in law was likely to lead to a greater number of less wealthy spouses drafting their own divorce petitions online.

“Many representing themselves have wanted to avoid the particularity of having to deal with the allegations of unreasonable behaviour and adultery,” she said. “And by doing so unnecessarily raising the temperature at a time when sensitivity is, in my view, of paramount importance.”

Tini Owens from Worcestershire highlighted the unfairness of the 1973 law when she lost her Supreme Court divorce appeal in 2018.

Tini, then aged 68, protested that her estranged 80-year-old husband Hugh had contested her petition after 40 years of marriage, saying he thought they had a “few years” left to enjoy together.

She had hoped to be the first spouse to divorce under the new legislation but instead gained her divorce under existing rules after the couple had separated for five years.

Simon Beccle, partner at law firm Payne Hicks Beach, who acted for Tini Owens, said his client was disappointed with the delay, but she hoped that “no one will ever again have to go through the ghastly, unhappy and expensive process she did”.

Demand for separation is on the rise. There were 107,599 divorces of opposite-sex couples in England and Wales in 2019, up 18 per cent from 90,871 in 2018, according to the latest data from the Office for National Statistics.

However, the ONS said the increase reflected a processing backlog at divorce centres in 2018, partly due to staffing shortages, which is likely to have translated into a higher number of completed divorces in 2019. Contested divorces accounted for less than 2 per cent of annual cases.

A number of other jurisdictions, such as Australia, Canada and some US states, already have no-fault divorce laws — but many others do not, such as Singapore the United Arab Emirates and 33 US states.

In 2017, an academic report entitled Finding Fault? by Liz Trinder, a professor at Exeter University, found that around 48 per cent of divorces in 2015 were granted because of “unreasonable behaviour”.

She found in other jurisdictions notably France and Scotland, the use of “fault” in divorce proceedings was a tenth of that in England and Wales.

The Ministry of Justice declined to comment but has previously said that the new divorce law will reduce conflict and avoid family break ups harming children.

Chris Philp, the then courts minister, said in a written answer to the Commons in June that the delays in implementing the new legislation were because of the need for rigorous testing of the new system.

“While this delay is unfortunate it is essential that we take the time to get this right,” he said.

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